108 Neb. 510 | Neb. | 1922
Action for damages against'defendants for negligently permitting their cattle to destroy a quantity of cane belonging to the plaintiff. The trial resulted in a verdict for the plaintiff for f474.58, upon which judgment was rendered. Defendants appeal.
The principal errors relate to the failure of the trial court to properly instruct the jury.
It appears from the record that the plaintiff had leased from the owner a certain quarter section of land for the year ending March 1, 1919, upon which he had put up a ■number of tons of hay, and also grew and harvested in 1918 about 20 acres of cane. On March 1, 1919, two-thirds of this cane ivas in the shock, and the remainder lay in bundles upon the ground as it fell from the machine. At the expiration of the lease this cane and about 15 tons of hay in the stack were still upon the premises. The land leased by the plaintiff was a part of a large ranch of some 4,800 acres. This ranch, including the land occupied by the plaintiff, was leased by the owner to the defendants for ranching purposes for a period of years commencing March 1, 1919. At the commencement of their lease the defendants placed upon the ranch 540 head of cattle, placing them in charge of a herder, and in the first instance kept them north of the premises upon which the plaintiff’s property was located. There was a fence along the north
One of the errors assigned is that the court erred in failing to instruct the jury upon the issue of abandonment
Defendants also urge that the court erred in giving instruction No. 4. This instruction in effect told the jury that there was no dispute but that the plaintiff was the owner of the cane in question; that defendants’ cattle destroyed it; and that the only question to be determined by the jury from the evidence was the value of the cane- destroyed. Defendants contend that this instruction withdrew from the consideration of the jury the issue of defendants’ negligence. We are inclined to agree with this contention. If, as claimed by the plaintiff, his cane was upon the premises by the permission of the defendants, with the assurance on their part that it would be protected, then defendants thereby assumed the obligations of gratuitous bailees for the benefit of the bailor, and would be liable to the plaintiff for injury to the property arising out of their gross negligence or bad faith. Burk v. Dempster, 34 Neb. 426. If, as claimed by the defendants, they gave no permission to the plaintiff to leave his property on the premises, and gave no assurance that it would not be harmed by their cattle, then we think the defendants owed no duty to the plaintiff to protect his property, except to refrain from wanton, reckless, or wilful conduct which would injure or destroy the property. Under the issues and evidence in the case, we think the instruction as
A number of other errors are assigned, but as they are not likely to occur upon a retrial we deem it unnecessary to consider them.
For the errors pointed out, the judgment is reversed and the cause remanded for further proceedings.
Reversed.